In September 1989, Heidi Rosenberg, a white engineer in the
Environmental Engineering Unit, was promoted to Senior Engineer, a Level
B-94 position.*fn1 See Defendant's Rule 56.1 Statement [hereinafter
"Def.'s 56.1 S."] at ¶ 4. Vernon was not promoted despite the fact
that Marvin Krishner, Chief Environmental Engineer of the unit and
Vernon's immediate supervisor, wrote in a 1987 memorandum that Rosenberg
and Vernon were both "performing at `Senior Levels'." See Defendant's
Answer [hereinafter "Def.'s Answer" at ¶ 10. In December 1992,
Rosenberg informed her supervisor that she had received an employment
offer in another department, and to induce her to stay in the
Environmental Engineering Unit, she was promoted to Supervising
Environmental Engineer, a Level B-95 position. See Def.'s 56.1 S. at
¶ 5, Deposition of Frederick A. Meyers, sworn to on Oct. 13, 2000
(hereinafter "Meyers Oct. Dep.") at 14-15.

In March 1993, Rosenberg resigned from Port Authority, and Port
Authority advertised her position internally as well as externally. See
Pl.'s 56.1 S. at 2. Vernon applied for the B-95 position but was notified
in May that he had not been selected for the position. A white, 65-year
old temporary employee, who had been working for Port Authority for one
year, filled the vacancy. See Def.'s 56.1 S. at ¶ 7. In March and
August of 1994, Vernon complained to the Assistant Chief Engineer for
Design and the Executive Director of Port Authority about alleged ongoing
discriminatory practices at Port Authority. See id. at 3. In September
1994, Frederick Meyers, Manager of Port Authority's Equal Employment
Office ("EEO"), started an investigation into Vernon's allegations of
discrimination. See id.

In January 1995, four months after the start of Meyers's
investigation, Vernon received his annual Performance Planning and Review
("PPR"), and discovered that although he had received the same overall
rating as previous years and the maximum merit increase to which he was
entitled, the individual scores in one category were downgraded. See
Oscar Suros Affidavit, sworn to on Sept. 12, 2000 [hereinafter "Suros
Aff."] at ¶ 12. According to Oscar Suros, the Manager of the
Engineering/Architecture Design Division, Vernon's rating was downgraded
because supervisors were asked to be more realistic about PPR ratings,
and this policy was applied to all employees. See id. at ¶¶ 11, 13.

In February 1995, Port Authority issued a job bulletin seeking
candidates for a Principal Environmental Engineer position, a Level B-95
position. See Def. 56.1 S. at ¶ 10. Vernon applied for the position
but was told that he could not be considered for the position because he
did not meet the job requirement of holding an engineer's license. See
id. at ¶ 6. Because of a hiring and promotion freeze in 1995, the
position was not filled. See id. at ¶ 7.

The moving party bears the burden of demonstrating that no genuine
issue of material fact exists. See Adickes v. S. H. Kress & Co.,
398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Serv. L.P.,
22 F.3d 1219, 1223-24 (2d Cir. 1994). "[T]he movant's burden will be
satisfied if he can point to an absence of evidence to support an
essential element of the nonmoving party's claim." Goenaga v. March of
Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Once the
moving party discharges his burden of demonstrating that no genuine issue
of material fact exists, the burden then shifts to the nonmoving party to
offer specific evidence showing that a genuine issue for trial exists.
See Celotex, 477 U.S. at 324. The nonmoving party "must do more than
simply show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574.
586 (1986). "A `genuine' dispute over a material fact only arises if the
evidence would allow a reasonable jury to return a verdict for the
nonmoving party." Dister v. Continental Group, 859 F.2d 1108, 1114 (2d
Cir. 1988) (quoting Liberty Lobby, 477 U.S. at 248).

Employment discrimination is often perpetrated "by discreet
manipulations and hidden under a veil of self-declared innocence." Rosen
v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). Because "[a]n employer
who discriminates is unlikely to leave a `smoking gun' attesting to a
discriminatory intent," a "victim of discrimination . . . is usually
constrained to rely on the cumulative weight of circumstantial evidence."
Id. (internal citations omitted). Consequently, courts must be cautious
in granting summary judgment when the employer's intent and state of mind
are placed in issue. See Gallo, 22 F.3d at 1224; See also Rosen, 928 F.2d
at 533. However, if there is a lack of genuine issue of material fact,
courts are not precluded from granting summary judgment in employment
discrimination cases. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d
Cir. 1997); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir.
1994);
see also Abdu-Brisson v. Delta Airlines Inc., 239 F.3d 456, 466
(2d Cir. 2001) ("It is now beyond cavil that summary judgment may be
appropriate even in the fact-intensive context of discrimination
cases.").

II. Acts Prior to September 25, 1994

A. 180-day Time Limit Applies

For complaints based on Title VII or the ADEA, a plaintiff must file a
charge of discrimination with the EEOC before commencing an action in
federal court. See 42 U.S.C. § 2000e-5(e), 29 U.S.C. § 626(d).
The charge must be filed within 180 days after the alleged unlawful
employment practice occurred or within 300 days if the plaintiff has
initiated proceedings with a state or local employment agency. See
42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d); Dezaio v. Port Auth.
of N.Y. & N.J., 205 F.3d 62, 64-65 (2d Cir. 2000), cert. denied 121
S.Ct. 56 (2000) (ADEA); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d
Cir. 1992) (Title VII).

Port Authority, a bi-state entity created by a Compact between New York
and New Jersey, "lies outside New York's [and New Jersey's]
anti-discrimination regime[s]." Dezaio, 205 F.3d at 64, 65. Bi-state
entities "are not subject to the unilateral control of any one of the
States." Id. at 66 (quoting Hess v. Port Auth. Trans-Hudson Corp.,
513 U.S. 30, 42 (1994)). Thus, "New York's anti-discrimination laws are
not controlling with respect to the time limitations that govern when an
individual must file a charge of discrimination with the EEOC." Id. at
65. Because there is no state or local agency that has jurisdiction over
claims against Port Authority; the 300-day rule does not apply to cases m
which Port Authority is a party. See id. at 66. Therefore, in Title VII
or ADEA cases involving Port Authority, a plaintiff must file a claim
with the EEOC within 180 days of the occurrence of the discriminatory
act. See id. at 64; see also Suggs v. Port Auth. of N.Y. & N.J., 1999 WL
269905, *3 (S.D.N.Y. 1999); Rose v. Port Auth. of N Y & N.J.,
13 F. Supp.2d 516, 520 (S.D.N.Y. 1998) (Leisure, J.); Settecase v. Port
Auth. of N Y & N.J., 13 F. Supp.2d 530, 535 (S.D.N.Y. 1998); Baron v.
Port Auth. of N.Y. & N.J., 968 F. Supp. 924, 930 (S.D.N.Y. 1997).

Vernon filed with the EEOC on March 25, 1995. Applying the 180-day
rule, only incidents occurring within 180 days prior to his filing are
actionable. Therefore, any events occurring before September 25, 1994 are
time-barred.

B. Continuing-Violation Exception Does Not Apply

There is an exception to the time limitation to file a claim with the
EEOC in cases where there is a continuing violation of Title VII or the
ADEA. "The continuing-violation exception extends the limitations period
for all claims of discriminatory acts committed under an ongoing policy
of discrimination even if those acts, standing alone, would have been
barred by the statute of limitations." Ouinn v. Green Tree Credit Corp.,
159 F.3d 759, 765 (2d Cir. 1998) (internal quotes omitted). A continuing
violation may be found where there is evidence of an ongoing
discriminatory policy or a discriminatory mechanism such as a
discriminatory seniority list or an employment test. See Lambert v.
Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied 511 U.S. 1052
(1994); see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713
(2d Cir. 1996). Even where there is no formal policy, a continuing
violation may also be found where there is proof that "the employer has
permitted [specific and related instances of discrimination] to continue
unremedied for so long that its inaction may reasonably be viewed as
tantamount to a policy or practice of tolerating such discrimination."
Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001). Furthermore,
the policy does not need to be widespread; the continuing violation
exception may apply to specific and related instances of discrimination
against a single plaintiff See id. However, several incidents of
discrimination, even if similar, that are not the result of a
discriminatory policy or mechanism do not amount to a continuing
violation. See Lambert, 10 F.3d at 53, Van Zant, 80 F.3d at 713.

Vernon argues that the continuing-violation exception applies and that
all the events that occurred before September 25, 1994 are timely,
because Krishner created a pattern of discrimination. See Pl.'s Mem. at
9. This argument is unpersuasive to the Court. The discontinuity in time
of the three acts of alleged discrimination occurring before September
25, 1994 is fatal to his argument. See Quinn, 159 F.3d at 766. In Quinn,
the Court held that acts occurring in breaks of 3 years, 1 year, and less
than a year were sufficiently isolated in time to break the continuum of
discrimination. See id. Here, the first incident occurred in 1989, the
second in October of 1992, and the third in May of 1993. Similar to
Quinn, the 3-year and 7-month time gaps between these incidents do not
reflect a "continuing" violation.

Even if there was continuity in time of the allegedly discriminatory
acts, Vernon has not provided any evidence of a discriminatory policy or
mechanism used against him. He appears to be arguing that Krishner
instituted a discriminatory policy against him in failing to promote him
several times over the years, but he does not show that it was the result
of a discriminatory policy that Krishner instituted against him. Although
Vernon claims to have discussed his desire to b& promoted with Krishner,
he does not indicate when these conversations took place. Therefore,
Vernon offers no evidence to show that Krishner knew of Vernon's desire
to be a Senior or a Supervising Engineer in 1989 and 1992 when Rosenberg
was promoted. Furthermore, Vernon offers no evidence that Krishner had
the authority to carry out such a policy against Vernon or that Krishner
was involved in the hiring decisions in 1989 and 1992. Although the
incidents of failure to promote are similar in nature, because they are
not the result of a discriminatory policy or mechanism, they do not
constitute a continuing violation.

In addition, Vernon cannot show that these incidents continued
unremedied for so long as to amount to a discriminatory policy or
practice. Vernon complained about the alleged discriminatory practices
first in March 1994 and then in August 1994, and Port Authority started
an investigation of these allegations in September of the same year.
Because Port Authority took prompt action in response to Vernon's
complaints, there is no evidence that discriminatory acts continued
unremedied for so long to amount to a continuing violation. See
Fitzgerald, 251 F.3d at 362. Because there is no evidence of a continuing
violation, the 180-day rule cannot be extended to cover incidents
occurring prior to September 25, 1994.

Here, Vernon has not shown that any extraordinary circumstances exist
in his case to justify equitable tolling. Neither the Court nor the
defendant lulled the plaintiff into inaction. Vernon argues that Port
Authority's internal investigation caused time to lapse and led him to
delay filing with the EEOC. See Pl.'s Mem. at 6. There is no evidence,
however, that Port Authority used the internal investigation to hinder
Vernon from filing. The fact that Vernon filed with the EEOC before
Meyers issued a final report of the investigation reflects Vernon's
awareness that he was free at any time during the investigation to file
with the EEOC. Furthermore, Vernon had already missed the 180-day
deadline through his own inaction before Port Authority's EEO became
involved. The 180-day period begins to accrue "from the date the claimant
had notice of the allegedly discriminatory action." Van Zant, 80 F.3d at
713. Each time Vernon was denied a promotion, he had notice of the events
and could have filed a charge with the EEOC. When he first complained in
March 1994, the 180-day deadline for the most recent incident, which
occurred in May 1993, had already expired.

Vernon also insists that Port Authority's failure to advise him of his
rights, including notice of the 180-day rule and right to counsel,
prevented him from timely filing with the EEOC. Vernon does not cite, and
research by the Court has failed to reveal, any case law holding that the
employer must inform the employee of his rights when he files an internal
discrimination complaint. To the contrary, the Second Circuit has held
that ignorance of the 180-day rule for Port Authority employees, because
the employer or a lawyer failed to advise the employee, is no excuse for
missing the filing deadline. See Dezaio, 205 F.3d at 64. Because Vernon
is unable to show that he was induced or tricked into missing the
limitation period, equitable tolling to admit acts occurring prior to
September 25, 1994 as timely is not appropriate in this instance.

D. 180-day Rule Does Not Violate the Equal Protection Clause

Vernon argues that the I 80-day rule violates the Equal Protection
Clause, because non-Port Authority employees can take advantage of the
300-day time requirement. "When a statute neither impinges on a
fundamental right guaranteed by the Constitution nor uses a
classification based on a suspect criterion such as race, nationality,
alienage, or gender, the law generally will not be found to violate the
Equal Protection Clause unless it has
no reasonable or rational basis."
Story v. Green, 978 F.2d 60, 63-64 (2d Cir. 1992) (citing Exxon Corp. v.
Eagerton, 462 U.S. 176, 196 (1983); Hodel v. Indiana, 452 U.S. 314, 331
(1981)). Vernon does not argue that the time limitations in Title VII or
the ADEA impinge on any fundamental right, but argues instead that the
time limitations violate the Equal Protection Clause because they treat
Port Authority employees differently than other victims of
discrimination. Because Port Authority employees are not a suspect
class, the statutes must be examined under the rational basis standard.

Under the rational basis standard, a statute will be upheld if there is
a "rational relationship between. the [challenged classification] and
some legitimate governmental purpose." Tarbe v. Berkel, 196 F.3d 136, 137
(2d Cir. 1999) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).
"[T]hose attacking the rationality of the legislative classification have
the burden to negative every conceivable basis which might support it."
Tarbe, 196 F.3d at 137 (quoting FCC v. Beach Communications Inc.,
508 U.S. 307, 315 (1993)).

The difference in time limitations for filing with the EEOC promotes a
legitimate government purpose. Normally, Title VII and the ADEA require
that a charge be filed 180 days after the alleged unlawful act occurred.
The 300-day rule is applicable only where the "alleged unlawful practice
occurred in "a State which has a law prohibiting discrimination in
employment and establishing or authorizing a State authority to grant or
seek relief from such discriminatory practice." Dezaio, 205 F.3d at 65.
The purpose of the extension of time is for "exhaust[ing] administrative
remedies with an eye toward conciliation and resolution of the alleged
[discriminatory] practice . . . without the need to resort to
litigation." Id. Not allowing Port Authority employees to benefit from
the extension of time from 180 days to 300 days is rationally related to
this purpose, because neither New York's no New Jersey's
anti-discrimination laws apply to Port Authority, therefore making
reconciliation with the state unattainable. Therefore, the 180-day rule
does not violate Vernon's right to Equal Protection.

Given Vernon's failure to produce evidence that establishes a
continuing violation, a reason for equitable tolling, or a violation of
the Equal Protection Clause, the Court grants the defendant's motion for
summary judgment for all claims occurring prior to September 25, 1994 and
excludes them from its consideration on the merits. The Court will
consider the remaining two acts of alleged discrimination and retaliation
that occurred subsequent to September 25, 1994: (1) the downgrade in
Vernon's PPR and (2) the failure to promote to the Principal
Environmental Engineer position.

Once the plaintiff has made out a prima facie case, there is a
presumption that the employer unlawfully discriminated against the
employee. See Scaria, 117 F.3d at 654. To rebut the presumption, the
employer is required to introduce, through admissible evidence, a
legitimate, nondiscriminatory reason for its action. See id.; see also
Chambers, 43 F.3d at 38. "Any stated reason is sufficient; the employer
need not persuade the court that the proffered reason was the actual
reason for its decision." Tarshis v. Riese Org., 211 F.3d 30, 36 (2d
Cir. 2000).

Finally, alter the employer justifies its action, the burden of
production shifts back to the plaintiff to show that the employer's reason
was merely a pretext for discrimination. See Abdu-Brisson, 239 F.3d at
469; see also Chambers, 43 F.3d at 38. Pre-text can be shown by either
presenting additional evidence showing that the employer's justification
is "unworthy of credence" or relying solely on the "evidence comprising
the prima facie case." See Chambers, 43 F.3d at 38 (quoting Burdine, 450
U.S. at 256). There is no categorical rule that the plaintiff must
offer, in addition to his prima facie case and evidence of pretext,
further evidence that discrimination was the actual motivation. See
Abdu-Brisson, 239 F.3d at 469 (interpreting Reeves, 530 U.S. at 143).

1. PPR Downgrade

Vernon is able to make out a prima facie case of discrimination under
Title VII and the ADEA for the downgrade in his PPR. It is undisputed
that Vernon belongs to a protected class (he is 40 years of age or older
and a black Belizean) and that he was qualified for the position he
held.

The Second Circuit has held that a downgrade in evaluation is an
adverse employment action. See Morris v. Lindau, 196 F.3d 102, 110 (2d
Cir. 1999) (holding in the context of a First Amendment retaliation claim
that adverse employment actions may include negative evaluation
letters); Dominic v. Consol. Edison Co. of N.Y., Inc., 822 F.2d 1249,
1254 (2d Cir. 1987) (holding that adverse employment actions include poor
evaluations); Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 790 (2d Cir.
1997) (holding that downgrade of evaluation, among other factors, raised
a genuine issue of material fact with respect to adverse employment
action). Because the PPR downgrade may lead to Vernon's inability to
secure future employment, he suffered an adverse employment action, thus
fulfilling the third prong of the prima facie case.

Vernon can satisfy the final prong of the prima facie case, that the
downgrade occurred under circumstances giving rise to an inference of
discrimination. Vernon's PPR scores over the last ten years have been
consistently above average. In his investigation, Meyers concluded that
there were some "management inconsistencies" in the way the downgrade in
Vernon's PPR was handled. Meyers July Dep. at 30. Ordinarily, Port
Authority employees have access to counseling and feedback on their
performance. However, Vernon's supervisors summarily dismissed Vernon's
request to review his lowered PPR scores, stating that "it would take too
much time." Mins. of PPR Mtg. ¶ 11. When Meyers questioned Vernon's
supervisors about the reasons for the lower scores, he heard for the
first time about performance deficiencies and difficulties that were not
recorded in Vernon's PPR. See Meyers July Dep. at 30. During the course
of his investigation, Meyers met with Krishner to discuss Vernon's PPR,
and Meyers stated that Krishner became "defensive" about his failure to
chronicle these job deficiencies in the PPR he wrote for Vernon and
orally reporting these shortcomings for the first time. See Meyers Oct.
Dep. at 27.

Furthermore, Meyers reported that Krishner had previously stated that
he preferred to promote younger staff members. See Plaintiff's Exhibit 20
[hereinafter "Pl.'s Ex. 20"] at ¶ 5. This quote would be admissible
to show Port Authority's discriminatory animus toward Vernon. Although
only age is expressly mentioned, in light of the "debatable
circumstances" surrounding the PPR downgrade, a fact-finder may also be
free to infer discrimination based on race or national origin. Chambers,
43 F.3d at 38 (inferring discrimination where no evidence that dismissal
based on protected classification but where evidence that reason for
discharge was contrived). Because the plaintiffs burden of making a prima
facie case is de minimis, Vernon has submitted enough evidence to give
rise to an inference of discriminatory intent based on age, race, or
national origin.

Port Authority satisfies its burden of articulating a legitimate,
nondiscriminatory reason for the PPR downgrade. Port Authority claims
that the reduction in Vernon's PPR scores was the result of a uniformly
applied policy to give more "realistic" ratings to all staff members.
Suros Aff. at ¶ 11. In fact, a number of engineers besides Vernon
received lower PPR scores. See id. at ¶ 13.

Vernon is able to make out a prima facie case of discrimination under
Title VII and the ADEA for the denial of his promotion to Principal
Environmental Engineer. In order to establish a prima facie case for
discriminatory failure to promote, a plaintiff must demonstrate: (1)
membership in a protected class, (2) application for promotion to a
position for which he was qualified, (3) rejection for the promotion, and
(4) circumstances giving rise to an inference of discrimination. See
Mauro v. Southern New England Telecomm Inc., 208 F.3d 384, 386 (2d Cir.
2000); O'Connor, 517 U.S. at 312. It is undisputed that Vernon is a
member of a protected class and was rejected for the position.

Port Authority argues that Vernon was not qualified for the Principal
Environmental Engineer position because he did not possess a professional
engineer's license, one of the purported job requirements. Vernon has put
forth evidence that the licensing requirement is a pretext for
discrimination. Following the teaching of Bickerstaff v. Vassar College,
196 F.3d 435 (2d Cir. 1999), the Court will consider the job requirement
in the second step of the McDonnell Douglas test where the defendant
proffers a legitimate reason for the employment action. Under the
qualification prong of the prima facie case, the Court will only examine
whether or not Vernon had the basic skills for the position.

Port Authority is able to provide legitimate, nondiscriminatory reasons
for denying Vernon the promotion. Because both New York and New Jersey
law require that state institutions employ only licensed professional
engineers to perform engineering work or be in responsible charge, Suros
recommended that employees in positions B-95 and above have a
professional engineer's license. See Suros Memorandum [hereinafter "Suros
Mem."]. A Principal Environmental Engineer is a B-95 position, so the
position was advertised with a professional engineer's license
requirement. See Def.'s Bullt. Port Authority argues that because Vernon
does not hold a license, he does not meet the minimal requirement for the
job. Furthermore, Port Authority maintains that problems with Vernon's
job performance also justified the denial of the promotion. According to
Krishner, Vernon could not maintain schedules, manage consultant and
client relationships, or pay attention to detail, and was a poor
technical writer. See Meyers Oct. Dep. at 25. In light of
these
declarations, Port Authority has satisfied its burden of articulating
nondiscriminatory reasons for failing to promote Vernon.

Title VII and the ADEA both provide that it shall be unlawful for an
employer to discriminate against any employee because he has opposed an
unlawful employment practice. See 42 U.S.C. § 2000e-3(a),
29 U.S.C. § 623(d). "A finding of unlawful retaliation is not
dependent on the merits of the underlying discrimination complaint."
Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986).
Retaliation claims are also analyzed under the McDonnell Douglas
three-step burden-shifting framework. See Wanamaker, 108 F.3d at 465
(analyzing Title VII and ADEA retaliation claims under McDonnell Douglas
standard). First, the plaintiff must establish a prima facie case of
retaliation. To make out a prima facie case, the plaintiff must show
that: (1) he was engaged in a protected activity under Title VII and the
ADEA, (2) the employer was aware of the plaintiff's participation in the
protected activity, (3) he was subjected to an adverse employment action,
and (4) there is a casual connection between the protected activity and
the adverse action. See id.; see also Gordon v. N.Y. City Bd. of Educ.,
232 F.3d 111, 113 (2d Cir. 2000) (Title VII); Slattery v. Swiss Reins.
Am. Corp., 248 F.3d 87, 94 (2d Cir. 2001) (ADEA). The burden at this
stage is de minims. See Wanamaker, 108 F.3d at 465. Once the plaintiff
has established a prima facie case, the defendant must offer a
legitimate, nondiscriminatory reason for the adverse employment action.
See Slattery, 248 F.3d at 94-95. If the defendant satisfies his burden,
then the plaintiff must show that the reason is a pretext for
discrimination. See id. at 95.

Second, Port Authority was aware of his participation in the activity,
because Vernon filed with the Port Authority's EEO. Third, as discussed
above, the downgrade in Vernon's PPR is considered an adverse employment
action. Finally, there is a causal connection between the protected
activity and the adverse action. "Proof of causal connection can be
established indirectly by showing that the protected activity was
followed closely by discriminatory treatment." DeCintio v. Westchester
County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (italics in
original). The downgrade in Vernon's PPR occurred four months after the
start of Port Authority's investigation into Vernon's complaint. The
short time period in which these two events happened reflects a causal
nexus between them. See id. (noting that one year between employee filing
complaint and his discharge suggests causation).

Port Authority proffers a legitimate, non-discriminatory reason for the
downgrade: that all supervisors were instructed to give more realistic
ratings to all employees. However, Vernon has put forth evidence that the
reason is a pretext for retaliation. In his investigation, Meyers
concluded that there were some "management inconsistencies" in the way
Vernon's complaint about his PPR was handled. See Meyers July Dep. at
30. Normally, Port Authority employees have access to counseling and
feedback on their performance, but Vernon's request to review his lowered
PPR scores was summarily denied. When Meyers questioned Vernon's
supervisors about the reasons for the lower scores, they articulated for
the first time shortcomings in his performance that were not recorded in
Vernon's PPR. See Meyers July Dep. at 30. Krishner became "defensive"
when asked about his failure to record these job deficiencies in the PPR
he wrote for Vernon. See Meyers Oct. Dep. at 27. From this evidence of
Vernon's supervisor attempting to brush off Vernon's concern for his
reduced scores, the jury may choose to believe that the PPR downgrade was
a reprisal for filing a discrimination complaint and not for the reason
that Port Authority maintains. Because a genuine issue of material fact
exists as to whether Port Authority's reason is pretextual or not, the
Court denies defendant's motion for summary judgment on plaintiff's Title
VII and ADEA retaliation claims regarding the PPR downgrade.

2. Failure to Promote

Vernon is able to establish a prima facie case of retaliation for the
denial of the promotion. He satisfies the first three prongs of the prima
facie case, because he participated in a protected activity when he filed
the complaint with the EEO, Port Authority was aware of this activity,
and the denial of the promotion was an adverse employment action. A
causal connection between the protected activity and the adverse action
can also be shown. Vernon was denied the promotion only six months after
the start of Port Authority's investigation into Vernon's complaint. The
proximity in time between the start of Meyers's investigation and Port
Authority's rejection of Vernon for the job reflects a nexus between the
two events. See DeCintio, 821 F.2d at 115. Fulfilling the four prongs,
Vernon has established a prima facie case of retaliation.

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